Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-29
COURT OF APPEALS.
synopsis of Decisions Rendered at She
Present Tyler Sitting Of the
Court Of Appesls.
Judgments Affirmed, Reversed and Re
manded ana Motions Overruled.
Some Important Findings.

mRnded and Motions Overruled,
Some Important Findings.
Correspondence of the Gazette
TYLER, TEX, Nov 26.-St. Louis, Ar
kansas and Texas Railway Company vs.. s
P. Tucker; appeal from Smith. This i
a suit by appellee to recover of appellan
damages for the wrongful ejectance O
appellee from appellants train, and in III,
court below appellee recovered judgment
for $50. On the trial the court, over
the objections of appellant, permitted ap
pellee TO prove declarations made by New
land, the agent Of appellant, who issued
the pass on which appellee sought to ride,
with reference to the validity of said pass
after the day on which appellee was eject.
| ed from the train. Held: Error; but
this error does not, We think, demand g
| reversal OF the Judgment, because conced-
ing that the pass was invalid, the appellee
had no knowledge or notice Of its Invalid
| lty, but supposed, and had the right to
! suppose it was issued to him by
the authority Of the COMPANY
and he went upon the company's
| Of the company to transport him, and IN
der & special contract made with the
agent Of said company that he should be
carried by virtue of said pass. We do
not agree to the proposition that a free
pass may be revoked by the company
which issued it at any time and under
any circumstances. Where, as in this
case, party has been induced by an
sOouf Of tho o0Tnnapu n halioua ba
pass issued to him by such agent entities
him to be carried upon the company's
train, and he accordingly makes his pre-
partitions to make the trip, and pla les his
baggage upon the train and goes upon
the train himself. We do not think it
would be just or legal to hold that the
company C uld, under the circumstances,
revoke even free pass issued without
any valuable consideration without in
cuT9Is liability for damages which
night result to the party
directly from such revocal.
The pass in question was issued to ap-
pellee in order to secure his services as q
lsborer for the company, and that he
might be carried to the place where his
services as such laborer were TO be per-
formed, which was d valuable copsidera-
ton, and hence the pass was not free
pass. There being no error in the Judge
ment RI quiring q reversal it is affirmed.
Wilson, j..
Cal Ray vs.. the State; appeal from
Travis. In this case there was evidence
tending to show that appellant had pur-
chased the alleged stolen animal. II this
fact WAS established by the proof the de-
fendant should not have been convicted,
and the court should have given the jury
fair and affirmative charge On this issue
of the case, and failing to do so commit
ted error. We are also OF the opinion
that the court erred in not grant
ing the defendant new trial.
While the additional evidence
disclosed by the afidsvits accompanying
said motion, may not in strictness be re-
garded as newly discovered, still We think
fairness and justice required that q new
trial should have been awarded. Re-
Versed and remanded. Wilson, J.
II. T Thompson vs.. the State; appeal
from Harris. This is a conviction for
manslkughter. When homicide occurs
under suQden passion, by the use Of
means not in their nature calculated to
produce death, IN the absence of an in
tention to kill, the circumstances not
showing an evil or cruel disposition, the
party killing would not be guilty of the
homicide, but self-defense spart-would
be guilty of some grade of assault and
battery. There is question raised in
this case as to whether appellant in
tended to kill the deceased and also
as TO whether the means used
were in their nature cal
culated to produce death. Held: In this
state Of the case the trial Judge should
have submitted by proper instructions
these issues to the jury, and if the jury
had failed to find the intent to kill, or that
the means used were in their nature cal
culGted 10 produce death, then verdict
for some grade of assault and battery may
or should have been the result. The
charge of the court on the issue CT St L.
defense is negative IN character. Held /:
EEEess it should have been affirmative.
and remanded. Hurt, J.
j. a. Gray vs.. J e. Webb; appeal from
Hunt. ssGraY brought this suit against
Webbsshis tenant, to recover $3.50 alleged
to be due him for rent and advances for |
the year 1885, and sued out distress |
warrant upon no other ground than |
that said debt was due and had il |
levied upon one osle Of Webb's cotton. |
Webb p.eaded counter claim for SI7 so |
and in reconVentioL for breach of rent |
contract damages in the sum Of $50, and |
for damsg es for illegally, ubjustly and
without probable cause suing out and |
leZyiag the distress warrant, the sum of |
SIS Judgment was rendered for ap-
pellee for the sum of ,SlI3 25 In this
csse the evidence shows that portion of |
the rent was due and unpaid, and that |
Webb, without the consent of his land |
lord Gray, had removed portion of the
cotton raised on the rented premises, and |
into another county. Held: This gave
Gray probable cause for suing out the |
distress warrant, and the court erred in |
giving q charge with reference to ex-
emplsry damages. 1t is contended by |
appellee that the verdict Of the jury |
does not award exemplary damages |
but only sexual damages, and |
that the erroneous charge of the court is
therefore harmless. Held: We cannot |
determine from the verdict itself whether
it is for actual or exemplary damages |
Where party fails to offer 8 special |
charge to supply an omission in the gen
eral charge of the court, he cannot COM
plain of such omission. Reversed and |
remanded. Wilson, j.